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New TCPA Rules and Express Written Consent

Businesses and telemarketers need to be aware of the new Telephone Consumer Protection Act of 1991 (“TCPA”) regulations that took effect the end of last year.

Telemarketing rules have changed and where robocalls are concerned, it is no longer business as usual. Prior to theses changes a business could contact a customer that was perceived to have given implied express consent. That is no longer the case.

What type of calls are impacted by the changes:

Calls and text messages to consumers are now being regulated differently. This includes:

telemarketing calls and text messages initiated to mobile devices using an automatic telephone dialing system (“ATDS”) or using an artificial or prerecorded voice;

and (ii) telemarketing calls made to residential land lines using an artificial or prerecorded voice.

If you are using a cold calling software that can store and dial multiple numbers for calls or text messages, you fall under this category. Previously the TCPA guidelines were more concerned with calls that had a prerecorded voice or were automated so that a live telemarketer was not on the line when a customer answered. Now they are focusing on calls made with this type of calling software, whether a live rep is on the phone or not.

Implied Consent vs. Express Written Consent

Prior to the rules changing a company could contact a customer using a robocall if they had given prior express consent. This could have been given in writing or in conversation. Now, a company needs to obtain prior written consentin order to contact someone. This is going to require companies to identify creative ways to secure the consent and continue reaching their customers.

What does the consent need to include?

In order to be valid the express written consent must include a clear description or understanding that the company will be making calls to the consumer and the consumer is in agreement with that fact. It must clearly state the phone number that the business may call. It must contain the consumers signature. If it is missing any of these items the consent is invalid and a company can be held liable for placing the call.

To obtain adequate “prior express written consent” under the new rules, there must be a written agreement between the company and the called party that meets the following requirements:

What about existing customers?

If a customer previously gave approval for a call in conversation or implied their consent, a company must get a new written consent form before calling or texting them. This applies to telemarketing calls, not informational calls. If you have obtained prior written consent but the consent no longer meets the TCPA standards you need to receive a new one. Also it is important to remember that a consumer can revoke their consent at any time.

It is important to protect your company and telemarketing staff from being exposed to liability. TCPA violations can have a penalty of $500 to $1,500 for every violation. If you are sending a block of text messages that fine could apply to every single text. It is better to simply obtain the written approval.